2021 (7) TMI 1355 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - OTS (One Time Settlement) sanctioned to the Corporate Debtor - existence of debt and dispute or not - HELD THAT - The Company Petition is nothing but a second round of litigation. The earlier company petition bearing no. 4086 of 2018 was withdrawn by the applicant on account of OTS (One Time Settlement) sanctioned to the Corporate Debtor. Except paying upfront amount of 10 crores, the Corporate Debtor did not adhere to the compliance of the remaining terms of the OTS despite availing nearly two years time. Thus, the debt and default are admitted in this case and the debt is also within limitation. The application is complete in all respects and the Financial Creditor also suggested the name of Mr. Vijay Pitamber Lulla as Interim Resolution Profession along with his consent letter in Form II. Thus, the present Company Petition satisfies all the necessary legal requirements for admission. Petition admitted - moratorium declined.

Issues:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) based on default in payment by Corporate Debtor.
2. Adherence to settlement terms by Corporate Debtor leading to the initiation of CIRP.
3. Admission of the Company Petition under Section 7 of the Insolvency and Bankruptcy Code.
4. Appointment of an Interim Resolution Professional and deposit of initial CIRP costs.
5. Imposition of moratorium and restrictions on legal actions against the Corporate Debtor.
6. Continuation of essential goods or services supply during the moratorium period.
7. Effectiveness and duration of the moratorium period.
8. Public announcement of the corporate insolvency resolution process.
9. Management vesting in the IRP/RP during the CIRP period.
10. Communication of the order to the Registrar of Companies for updating the Corporate Debtor's Master Data.

Analysis:
1. The Company petition was filed by the Financial Creditor to initiate CIRP against the Corporate Debtor due to default in payment amounting to Rs. 185,35,24,319. The Corporate Debtor failed to comply with the settlement terms of an earlier OTS despite availing two years, leading to the second round of litigation.

2. The debt and default were admitted, and the application satisfied all legal requirements for admission. The Financial Creditor proposed the name of an Interim Resolution Professional, Mr. Vijay Pitamber Lulla, who was appointed by the tribunal to carry out CIRP functions.

3. The tribunal found the Company petition liable for admission and ordered the initiation of CIRP against the Corporate Debtor. The Financial Creditor was directed to deposit Rs. 5 Lakhs for initial CIRP costs. The moratorium was imposed, prohibiting legal actions against the Corporate Debtor and ensuring the continuity of essential goods or services supply.

4. The moratorium's effect was specified to last until the completion of the CIRP process or until the approval of a resolution plan or liquidation order. Public announcement of the insolvency resolution process was mandated, and the management during CIRP was vested in the IRP/RP.

5. The suspended directors and employees of the Corporate Debtor were required to provide documents and information to the IRP/RP. The registry was instructed to communicate the order to both parties and the IRP promptly and update the Corporate Debtor's Master Data with the Registrar of Companies in Mumbai.

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